Form No.

HCJD/C-121

ORDER SHEET

IN THE LAHORE HIGH COURT, LAHORE

JUDICIAL DEPARTMENT
Writ Petition No.38404 of 2016
Muhammad Hussain and 2 others
Versus
Mst. Zarina Akbar and 6 others
Sr. No. of order/ Date of order/ Order with signatures of Judge, and that of
proceeding Proceeding Parties or counsel, where necessary

08.02.2017 Rana Muhammad Anwar, Advocate for the

petitioners
Mr. Aftab Hussain Bhatti, Advocate for the
respondents No.1 to 4
Wasim Mumtaz Malik, Addl. Advocate General

Tersely, the respondents No.1 to 3 instituted a suit

for declaration against the present petitioners (defendants No.3
to 5) and respondents No.4 & 5 (defendant No.2 and 1,
respectively) regarding the suit property. The defendant
No.2/respondent No.4 submitted written statement and
conceded the plaint. The petitioners moved an application under
Order I, Rule 10 of the C.P.C. for deleting the Province of
Punjab being unnecessary party. Allegedly, the matter was
settled in Punchayat that the plaintiffs would withdraw their
suit and defendant No.2 would give them their share out of
remaining six acres, but the plaintiffs continued their
proceedings and ultimately on 04.11.2015, ex parte proceedings
were ordered against the petitioners/defendants No.3 to 5 and
resultantly, on 08.01.2016, ex parte judgment and decree was
passed in favour of the plaintiffs/ respondents No.1 to 3. The
petitioners filed an application for setting aside the order dated
04.11.2015 with regard to initiation of ex parte proceedings and
ex parte judgment & decree dated 08.01.2016, which was
contested and the same was dismissed vide impugned order
W.P.No.38404 of 2016 2

dated 13.04.2016, which necessitated in filing of the civil

revision before the learned lower Revisional Court, but it was
dismissed vide impugned order dated 18.11.2016.
2. The main thrust of the learned counsel for the
petitioners is upon the fact that on the fateful date i.e.
04.11.2015, the suit was fixed for arguments on the application
filed under Order I, Rule 10 of the C.P.C. and at the most, due
to absence of the petitioners and their counsel, the learned trial
Court ought to have decided the fate of the said application
instead of initiating ex parte proceedings against the present
petitioners, as such, the learned Court committed illegality as
well as failed to consider law on the subject, which resulted in
miscarriage of justice. Relies on Qazi Muhammad Tariq v.
Hasin Jahan and 3 others (1993 SCMR 1949) and Hashim
Khan v. National Bank of Pakistan (1992 SCMR 707). Submits
that when the initial order dated 04.11.2015 is illegal, void ab
initio, without jurisdiction and without lawful authority, the ex
parte judgment and decree dated 08.01.2016 based on the said
void order is nullity in the eye of law. Relies on Water and
Power Development Authority through Chairman and 3 others
v. Mir Khan Muhammad Khan Jamali and another (2006 CLC
92-Quetta). Adds that the learned Courts below have passed
the impugned orders and ex parte judgment and decree clearly
in violation of the principles laid down by the Higher Courts.
Further adds that law leans in adjudication of cases on merits
rather on technicalities. Asserts that the learned Courts below
have committed jurisdictional error, which needs to be rectified
in exercise of constitutional jurisdiction. As such, by allowing
the writ petition in hand, the impugned orders and ex parte
judgment and decree may be set aside and the matter may be
remanded to the learned trial Court for decision afresh in
accordance with law. It has further been prayed that application
filed under Order I, Rule 10 of the C.P.C. may also be accepted.
W.P.No.38404 of 2016 3

Relies on Messrs Eastern Steels v. National Shipping

Corporation (1984 CLC 2778-Karachi), Assistant Controller
of Imports and Exports and 2 others v. Muhammad Iqbal
Bhirviya (1989 CLC 398-Karachi), Qazi Laeeq v. Najeebur
Rehman and others (2012 MLD 50-Peshawar), Muhammad
Anwar v. Muhammad Masood Akhtar and others (1993 MLD
1889-Lahore) and Syed Qaim Ali Shah through Attorney v.
Election Commission of Pakistan through Secretary and 3
others (PLD 2015 Sindh 408).
3. Naysaying the above submissions, the learned
counsel for the respondents No.1 to 4, by favouring the
impugned orders, ex parte judgment and decree, has prayed for
dismissal of the writ petition in hand. Relies on Honda Atlas
Cars (Pakistan) Ltd. v. Honda Sarhad (Pvt.) Ltd. and others
(2005 SCMR 609), Shahid Pervaiz alias Shahid Hameed v.
Muhammad Ahmad Ameen (2006 SCMR 631) and Secretary
Education Department, Government of N.-W.F.P., Peshawar
and others v. Asfandiar Khan (2008 SCMR 287).
4. Heard.
5. In the present case, the provisions of Article 181 of
the Limitation Act, 1908 attracts instead of Article 164 of the
Act, as the petitioners joined the proceedings, submitted their
written statement and when the suit was fixed for arguments on
the application filed under Order I, Rule 10 of the C.P.C., due
to their absence, they were proceeded against ex parte and later
on ex parte judgment and decree was passed against them; as
such, the period for filing application for setting aside of ex
parte judgment and decree is three years under the above said
Article of the Act. Hence, the learned Courts below have failed
to appreciate law on the subject properly; the said observations
recorded by the learned Courts below being beyond mandate of
law and not sustainable are reversed, set aside; it is held that the
W.P.No.38404 of 2016 4

application for setting aside of ex parte judgment and decree

was well within time.
6. Admittedly, when ex parte proceedings were
initiated against the petitioners, the date was fixed for
arguments on the application filed under Order I, Rule 10 of the
C.P.C., therefore, at the most, the learned trial Court ought to
have proceeded and decided the said application in absence of
the petitioners, rather to initiate ex parte proceedings against
them in the suit; therefore, such order and subsequent ex parte
judgment and decree cannot be said to be legal one, rather it is
without jurisdiction and void. Illumination in this regard can be
sought from reported case Hashim Khan v. National Bank of
Pakistan (1992 SCMR 707) and Qazi Muhammad Tariq v.
Hasin Jahan and 3 others (1993 SCMR 1949), which speaks:
It seems difficult to support the order dated 27-3-
1986 of the trial Court and the orders of the
Additional District Judge and the High Court. A
perusal of the record indicates that the suit of the
appellant was dismissed on a day which was not
fixed for its hearing; it was day appointed for
hearing arguments on the application for
temporary injunction filed by the appellant. In the
absence of the appellant all that the learned trial
Judge could do was to dismiss the application for
temporary injunction. It could not proceed beyond
that and dismissed the suit as well. Quite clearly
its order in this regard was without jurisdiction
and void.
When the order is patently illegal and has been passed in
violation of law, this Court has powers to rectify the same while
exercising its constitutional jurisdiction; in this regard reliance
can be placed on Muhammad Anwar and others v. Mst. Ilyas
W.P.No.38404 of 2016 5

Begum and others (PLD 2013 Supreme Court 255), wherein it

has been held:
Article 4 (ibid) mandates that it is the inalienable
right of every citizen to enjoy the protection of law
and to be treated in accordance with law and thus
where an order has been passed by any forum or
Court, including the Revisional Court, which is
patently illegal and violative of law, especially the
express provisions and the spirit of law, which
(order) if allowed to stay intact tantamounts to,
and shall cause serious breach to the legal rights
of the litigants and shall cause prejudice to them,
the learned High Court in appropriate cases while
exercising its constitutional jurisdiction can ratify
the illegality and violation of law, and undo the
harm caused by the order of such
(revisional)Court..
7. So far as the case law relied upon by the learned
counsel for the respondents is concerned, with utmost respect,
the same is on different ratio, therefore, the same does not
enhance the cause of the respondents. Even otherwise, each and
every case has its peculiar facts and circumstances and the
Courts have to evaluate and adjudge the same with an
independent mind so as to administer safer justice.
8. Compendium of the above discussion is that as the
initial order dated 04.11.2015 was void and against the
mandatory provisions of law, the subsequent superstructure
could not stand on the same and this Court has ample power to
rectify such jurisdictional error. As such, the instant writ
petition is allowed, the impugned orders dated 04.11.2015,
13.04.2016 passed by the learned trial Court and ex parte
judgment and decree dated 08.01.2016 and order dated
18.11.2016 passed by the learned Revisional Court, being based
W.P.No.38404 of 2016 6

on wrong assumption of law are declared illegal and void as

well as without jurisdiction and are set aside. Case is remanded
to the learned trial Court, where the suit shall be deemed to be
pending alongwith application filed under Order I, Rule 10 of
the C.P.C., with a direction to decide the same afresh on merits
in accordance with law. The adversaries are directed to appear
before the learned trial Court on 11.03.2017. No order as to the
costs.

(Shahid Bilal Hassan)

Judge
M.A.Hassan

Approved for reporting.

(Shahid Bilal Hassan)

Judge